People v. Payne
| Citation | 213 A.D.2d 565,623 N.Y.S.2d 922 |
| Parties | The PEOPLE, etc., Respondent, v. Daniel PAYNE, Appellant. |
| Decision Date | 20 March 1995 |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Claudia S. Trupp, of counsel), for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Victor Barall, and Christopher G. Fusco, of counsel), for respondent.
Before O'BRIEN, J.P., and RITTER, SANTUCCI and FRIEDMANN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered January 19, 1993, convicting him of obstructing governmental administration and criminal contempt in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
It is well settled that purposeful racial discrimination by criminal defendants and their counsel in the exercise of peremptory challenges is prohibited under the New York State and Federal Constitutions (see, People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235, cert. denied, 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50; Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33). Once the prosecution makes a prima facie showing that the defense exercised peremptory challenges on the basis of race, the defense is required to articulate a race-neutral explanation for striking the jurors in question (see, Batson v. Kentucy, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395). On appeal, the defendant contends that the prosecutor failed to establish a prima facie case of purposeful discrimination needed to trigger a reverse- Batson inquiry. Where as here, however, defense counsel proffered race-neutral explanations for his exercise of peremptory challenges without disputing the issue of whether a prima facie case of racial discrimination has been established, and the court ruled on the validity of the defense explanations, the issue of whether the prosecution made out a prima facie case is unpreserved for appellate review (see, Hernandez v. New York, supra, at 359, 111 S.Ct. at 1866; People v. Thomas, 210 A.D.2d 515, 620 N.Y.S.2d 478; People v. Jones, 204 A.D.2d 485, 611 N.Y.S.2d 640; cf., People v. Stiff, 206 A.D.2d 235, 620 N.Y.S.2d 87).
We also note that the Supreme Court properly determined that the explanations proffered by defense counsel for the exercise of his peremptory challenges against the two...
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